STATE OF NEW JERSEY v. MARGARET KLEINMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARGARET KLEINMAN,

Defendant-Appellant.

___________________________________________________

May 28, 2014

Submitted April 1, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 1-04-12.

John L. Weichsel, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Margaret Kleinman appeals the judgment of conviction that followed her de novo appeal to the Law Division from her municipal court conviction for violating N.J.S.A. 39:4-116 ("When a green arrow lens is incorporated in a traffic control signal and the signal is operating to control traffic at an intersection, vehicles shall make turning movements in the direction of the arrow only when the lens is illuminated."). We set forth the procedural history at length because it controls our consideration of the issues presented.

I.

On August 9, 2010, defendant was issued a summons for failing to maintain her lane while driving in Hackensack. See N.J.S.A. 39:4-88. On September 8, she appeared pro se, entered a not guilty plea and agreed to speak to the municipal prosecutor before deciding whether to proceed to trial.1 Defendant thereafter agreed to plead guilty to an amended charge of impeding the flow of traffic, N.J.S.A. 39:4-67, and the judge imposed a fine of $56 and $33 in court costs.

On June 29, 2011, defendant again appeared pro se in municipal court. She had apparently filed a motion seeking to withdraw her guilty plea. As she explained to the judge, her motion was based upon "collateral consequences" of her guilty plea, i.e., her "insurance rates went up" resulting in financial "hardship."

Defendant's certification in support of her motion is contained in the State's appendix. She claimed that as a result of the guilty plea, her insurance company increased her premium "to more than double what it was." Defendant also provided a lengthy description of the events culminating in the issuance of the summons for violating N.J.S.A. 39:4-88. She stated that there was "no factual basis" for her guilty plea because she never "was out of the lane" in which her car was traveling.2

The judge initially declined to consider the motion because of the length of time since defendant's guilty plea, but defendant explained that she had only recently become aware of the increase in her insurance rates. She also noted that the State had not opposed her motion, although the prosecutor lodged a verbal objection during the proceedings. The judge ordered the court clerk to "do an abstract" to see if defendant's guilty plea appeared.

After the court dealt with other matters, the judge announced that the State was moving to amend the violation "to failure to follow arrow . . . ." The judge told defendant that the amended charge "doesn't appear on your abstract[.]" Defendant again pled guilty, affirming that she was doing so "voluntarily." The judge explained the charge: "[Y]ou understand that failure to follow arrow means that you didn't maintain your lane and you failed to follow the . . . course of the road." Defendant said she understood. The judge then imposed a $206 fine and $33 in court costs.

On September 14, 2011, defendant appeared in municipal court after having again filed a motion to withdraw her guilty plea. She explained that "the only reason [she] paid the higher fine" was that the judge told her the conviction would not appear on her abstract. The judge initially refused to consider defendant's motion, stating that she could file an appeal within twenty days. However, he ultimately gave defendant a choice between withdrawing her guilty plea and facing trial on the original charge, or filing an appeal. When defendant could not decide, the judge told her to "come back next week" and advise him of her decision.

On October 26, defendant again appeared in municipal court, now represented by counsel who advised the judge that the case was "going to have to be tried."3 After some colloquy regarding a trial date, the following occurred:

Judge: I don't know if I want to give you a trial. I want to maybe let you file an appeal. That's what I want to let you do.

Defense Counsel: You're going to deny the motion to vacate[?]

Judge: Yep.

. . . .

[Defendant] has a right to file an appeal. I'm going to deny her motion. I think we've been more than . . . accommodating to [defendant] and I think she's taking advantage of the [c]ourt's accommodation now.

. . . [I]f the appeal court says I have to give her a trial, then I'll give her a trial, but I'm not going to voluntarily give her a trial.

Defendant filed a timely appeal to the Law Division and a hearing was held on March 20, 2012. Defendant argued that she should have been permitted to withdraw her guilty plea because she was advised that the violation did not result in "points" on her driving abstract. She also contended that the police officer was "never available" for trial.

After oral argument, the judge recognized that Rule 7:6-2(b) permitted withdrawal of a guilty plea after sentencing "to correct a manifest injustice," which "does contemplate insurance surcharges . . . and does give weight to claims of innocence." However, the judge noted that defendant's motion was granted on September 14, 2011 and the matter was set down for trial, but that defendant "then chose to think about it."

The judge further reasoned:

She was indecisive. Did she want a trial? Did she want a plea? She changed her mind. She waffled. She went back and forth. . . . I don't find that her insurance consequences were the reason for this. I find it was her indecisiveness in not going forward with the trial when offered.

The judge concluded that defendant's plea was voluntarily entered and supported by an adequate factual basis. He "g[a]ve little weight to the instructions about surcharges or promises as to surcharges[,]" noting "[t]hat's not the function of a court or a prosecutor." The judge further stated that he did not believe "the prosecutor or the judge can bind the insurance company." The judge found defendant guilty and imposed the same fine as the municipal court judge.4

II.

Defendant asserts that, for a variety of reasons, she should have been permitted to withdraw her guilty plea and proceed to trial. She also argues that the summons should have been dismissed because the issuing police officer failed to appear on multiple occasions, and, alternatively, that the maximum fine for violating N.J.S.A. 39:4-116 is $85, not $206, as imposed by Law Division judge.

The State counters by arguing that defendant's motion was fatally flawed because she never expressed a willingness to stand trial for violating N.J.S.A. 39:4-88 had the motion been granted. It also argues that defendant failed to satisfy the "manifest injustice" standard contained in Rule 7:6-2(b). The State further contends that the sentence was proper, and that defendant cannot complain about the officer's failure to appear because she never moved for dismissal in the trial court.

Having considered these arguments in light of the record and applicable legal standards, we reverse.

Initially, we reject the State's argument that defendant's motion was properly denied because she was unwilling to stand trial on the original charge. The Law Division judge seemingly equated defendant's indecisiveness with her unwillingness. However, it is clear that the municipal court judge extended defendant the opportunity to think about her options before deciding, and, when she did decide, he refused to permit her to withdraw her plea.5

We also reject defendant's argument that the case should have been dismissed because the issuing officer failed to appear on more than one occasion. Simply put, she never requested that relief before the municipal court, and we refuse to consider the argument. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . .").

We turn then to the reason for reversal. "Absent 'an abuse of discretion which renders the lower court's decision clearly erroneous,' we must affirm a trial court's decision on a motion to vacate." State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009) (quoting State v. Simon, 161 N.J. 416, 444 (1999)). "A denial of a motion to vacate a plea is 'clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Ibid. (citing State v. Slater, 198 N.J. 145, 164 (2009)).

"A motion to withdraw a plea of guilty shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." R. 7:6-2(b). When faced with such a motion, "[t]rial judges must 'consider and balance four factors . . . : (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.'" Mustaro, supra, 411 N.J. Super. at 100 (quoting Slater, supra, 198 N.J. at 157-58). "No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Slater, supra, 198 N.J. at 162. However, "efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Id. at 160.

As the Court has explained, "[t]h[e] second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. The Court "identified a number of reasons that warrant withdrawal of a plea" on these grounds, including a defendant's reliance upon misinformation provided by the court and prosecutor when entering his guilty plea. Ibid. (citing State v. Nichols, 71 N.J. 358, 361 (1976)). Withdrawal may also be appropriate "'[w]here the accused's reasonable expectations are defeated, [since] the plea bargain has failed one of its essential purposes, fairness . . . .'" Id. at 160 (quoting State v. Marzolf, 79 N.J. 167, 183 (1979)).

In this case, we agree with the Law Division judge that neither the municipal prosecutor or municipal judge could "bind" defendant's insurance company.6 However, that overlooks the representation that the municipal court judge actually made to defendant when she pled guilty to a violation of N.J.S.A. 39:4-116. The judge was aware of defendant's expressed concern about a conviction appearing on her driving abstract and told her unequivocally that it would not. We assume that the judge understood that defendant's "reasonable expectations" had been thwarted because at the next court appearance, he agreed to permit defendant to withdraw her guilty plea if she chose to do so, and gave her one week to make a decision. The record fails to disclose what, if anything, happened thereafter until the parties were again in court on October 26. At that time, the judge told defense counsel that he had changed his mind and was denying the motion to withdraw.

Considering the other Slater factors, we also think that defendant asserted a colorable claim of innocence. In her certification, defendant stated that she did not fail to maintain her lane of travel. In explaining the conduct proscribed by N.J.S.A. 39:4-116 to defendant, the judge seemingly defined an offense prohibited by N.J.S.A. 39:4-88. Defendant's perfunctory response, i.e., that she understood the charge, does not negate the denial of guilt contained in her certification. Additionally, there was no showing of prejudice to the State.

We therefore reverse and remand the matter to the municipal court for trial.7

1 Defendant stated that she was an attorney.

2 Defendant also claimed that the issuing police officer "adjourned the initial court date and did not appear on the second court date." She claimed that she was about to move for dismissal of the charges when she was directed by the judge to speak to the prosecutor.

3 The transcript reflects that defendant was represented by the municipal public defender, however, appellant's counsel advises in his brief that he appeared in municipal court on behalf of defendant.

4 The judge stayed imposition of sentence for ten days. We did not issue any further stay pending appeal.

5 We hasten to add that we intend no criticism of the municipal court judge's demeanor. It is obvious that he extended defendant several courtesies throughout the proceedings, and any frustration on his part was understandable.

6 We cannot tell from the documents contained in the appellate record whether defendant's insurance premium actually increased as a result of her conviction, and it appears that although the conviction appeared on her driver's abstract, it did not result in any points being assessed against her license.

7 For the sake of completeness and to provide guidance for future events, we reject defendant's claim that the sentence imposed was illegal. N.J.S.A. 39:4-203 permits a fine of not less than $50 nor more than $200 for a violation of certain sections of the Motor Vehicle Laws, including N.J.S.A. 39:4-88 and 39:4-116. The additional $6 is permitted pursuant to N.J.S.A. 39:5-41(d) to -41(g). We refuse to consider defendant's argument, asserted for the first time in her reply brief, that imposition of the maximum fine was unwarranted in this case.